(dissenting). I am unable to agree with the conclusions reached by my colleagues, and, in order that the reasons for my dissent may be clear', I make the following statement in relation to what appears from the record herein:
The plaintiff, among other things, alleged that the defendant did forcibly, and by means of threats, prevent the plaintiff from putting in a crop on a portion of said land; that, during spring of 1908, in spite of plaintiff’s demand and notice to vacate said premises, defendant prevented plaintiff from attending to and caring for his crops on said land; that defendant threatens to and will forcibly evict plaintiff from said land and harvest and remove the plaintiff’s growing crops; and that defendant Bickford is insolvent. Upon the sworn complaint, plaintiff obtained a restraining, order, restraining the defendant from in any way entering upon or interfering with plaintiff’s possession of the land and crop during Ihe pendency of this action. It is clear that, under the allegations of the complaint, the plaintiff was entitled to the relief prayed foi. Tin's action was tried before a referee, who reported findings of fact and conclusions of law herein; the same being favorable to the defendant. These findings and conclusions were adopted by the trial court, and such tidal court did right in adopting the findings of the' referee, unless such findings were clearly against the evidence received. After the trial court had adopted the findings and conclusions, and had entered judgment in accordance therewith, it granted plaintiff’s motion for a new trial. Plaintiff offered no evidence whatever to. establish a single one of the allegations above referred to, and plaintiff sought no finding on either of these matters, all of which had been denied by the defendant. Taking the evidence and giving it the construction most favorable to plaintiff, and it would appear: Plaintiff had a valid lease entitling him to the possession and use of this land for the season of 1909, of which lease defendant Cooley had constructive notice. Defendant Cooley, with no actual notice of such lease, purchased the land in question and received a deed thereto, afterward maintaining (though in error in so doing) that her right under her deed was superior to any right of plaintiff under his *485lease. She had some of the land plowed in the fall of 1908. Plaintiff objected to the plowing being done by defendant’s servant, and was advised that defendant Cooley considered plaintiff’s lease of no value. In the spring of 1909 the plaintiff and Bickford, as lessee of defendant Cooley, each sowed a part of this land to crop. Plaintiff never consented to defendant’s sowing the land, but it does not appear that he ever forbade defendants cropping same before bringing this action, which was brought just prior to harvest time in 1909.
The question before us is not merely which one’s right in this land was superior, nor whether plaintiff was entitled' to recover damages against the defendants, but whether, under the facts proven, the referee was right in denying a permanent injunction, and the trial court wrong in granting a new trial. If plaintiff had proven the facts as alleged in his complaint, he certainly would have been entitled to the relief prayed for; but if, tinder the evidence herein, plaintiff is entitled to such relief, then, whenever two persons shall honestly differ as to which one is entitled to crop certain land, and both enter thereon, each in good faith cropping part thereof, the one who has the superior right has .only to remain quiet until the land has been properly tilled and the crop ready for harvesting, when he may come into court, disregarding his ample legal remedies, and get an order restraining the other party from removing said crop, and himself remove not only what he has sown, but that sown by the other party. To me this seems anything but equity. It would seem rather that this is a case wherein there well may be applied the equitable principles that: “He who comes into equity must do so with clean hands.” “He who seeks equity must do equity.” And, “Equity aids the vigilant, not the indolent.” In the words of the learned Chief Justice of Minnesota as found in Marks v. Jones, 71 Minn. 136, 73 N. W. 719, we would reverse the order of the trial court “upon the broad ground that the admitted facts do not show any superior equity entitling the plaintiff to the injunction asked as against the defendant. To grant an injunction restraining the defendant from removing or disposing of any portion of the crops would, in view of admitted facts, be inequitable, and oppressive to the defendant.”